Citation Nr: 21023745 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-58 574A DATE: April 21, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to environmental exposures in Southwest Asia, is dismissed. Entitlement to service connection for irritable bowel syndrome (IBS) (claimed as a gastrointestinal condition), to include as due to environmental exposures in Southwest Asia, is dismissed. Entitlement to service connection for a skin condition, to include as due to environmental exposures in Southwest Asia, is dismissed. Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder [PTSD], anxiety, clinical depression, and sleep disturbance), to include any memory loss, is granted. Entitlement to service connection for a headache disability, to include as secondary to an acquired psychiatric disorder, is granted. FINDINGS OF FACT 1. In March 2021, prior to the promulgation of a decision in the appeal, the Veteran and his representative requested to withdraw the issue of entitlement to service connection for CFS. 2. In March 2021, prior to the promulgation of a decision in the appeal, the Veteran and his representative requested to withdraw the issue of entitlement to service connection for IBS (claimed as a gastrointestinal condition). 3. In March 2021, prior to the promulgation of a decision in the appeal, the Veteran and his representative requested to withdraw the issue of entitlement to service connection for a skin condition. 4. The Veteran’s acquired psychiatric disorders, to include any memory loss, were at least as likely as not caused or aggravated beyond natural progression by his in-service traumas. 5. The Veteran’s headache disability is at least as likely as not secondary to his acquired psychiatric disorders. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for CFS have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2018). 2. The criteria for withdrawal of entitlement to service connection for IBS (claimed as a gastrointestinal condition) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2018). 3. The criteria for withdrawal of entitlement to service connection for a skin condition have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2018). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include any memory loss, have been met. 38 U.S.C. §§ 1110, 1131, 1154(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2018). 5. The criteria for entitlement to service connection for a headache disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from October 2005 to May 2006 and October 2006 to February 2008, including in Southwest Asia from January 2007 to January 2008. In March 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. The Veteran’s collective, mental health diagnoses are construed as a single claim for entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Further, during the March 2021 Board hearing, the Veteran contended that his memory loss claim should be combined with his acquired psychiatric disorder claim; as such, those appeal issues have been consolidated, as reflected herein, such that memory loss is considered as a symptom of the mental health conditions, rather than a standalone disability. Service Connection Establishing service connection for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Notably, in this case, the evidence does not show that the Veteran has the medical background necessary to competently identify or opine regarding symptoms or diagnoses that are not lay observable; however, the Veteran, as a layperson, is competent to identify or opine regarding any lay-observable symptoms or diagnoses. Jandreau, supra; Layno, supra. 1. Entitlement to service connection for CFS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his authorized representative. Id. During the March 2021 Board hearing and through a March 5, 2021, Correspondence (both prior to the promulgation of a decision in the appeal), the Veteran and his representative requested to withdraw the issues of entitlement to service connection for CFS, IBS (claimed as a gastrointestinal condition), and a skin condition. As the Veteran has withdrawn these issues, there remain no allegations of errors of fact or law for appellate consideration; accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. 2. Entitlement to service connection for IBS (claimed as a gastrointestinal condition) This issue is dismissed for the same reasons and bases discussed above. 3. Entitlement to service connection for a skin condition This issue is dismissed for the same reasons and bases discussed above. 4. Entitlement to service connection for an acquired psychiatric disorder, to include any memory loss The Veteran generally contends that his acquired psychiatric disorders, to include any symptoms of memory loss, were at least as likely as not caused by or aggravated beyond natural progression by his in-service traumas; the Veteran further contends that his headache disability is secondary to his acquired psychiatric disorder. See March 2021 Board hearing transcript. Service treatment records (STR’s) document that the Veteran entered service without any pertinent abnormalities related to headaches, memory loss, or mental health (see June 2005 enlistment examination); however, they also document that the Veteran was diagnosed with and treated for mental health conditions (PTSD, depression, and anxiety) during service related to in-service traumas (the details of which are omitted herein to avoid retraumatization) (see May 2008 psychiatric hospitalization records; see also July 2009 STR’s). In an April 2012 VA Form 21-526, the Veteran discussed his in-service traumas and how his current mental health symptoms relate to those traumas. In an April 2012 letter, VA provider Dr. DH described that the Veteran received regular treatment for his psychiatric conditions, which prevented him from working. During the July 2012 VA psychiatric examination, the Veteran again discussed his in-service traumas; however, the examiner deferred rendering a diagnosis due to the examiner’s impression that the Veteran was exaggerating symptoms. In a July 2012 VA Form 21-0781 and a July 2012 Statement, the Veteran again discussed his in-service traumas and how his current mental health symptoms relate to those traumas. In an August 2012 Notice of Disagreement, the Veteran contended that he was not exaggerating symptoms during the July 2012 VA examination; rather, he was extremely nervous and distraught about having to talk about topics that upset him. During the January 2013 VA psychiatric examination, the Veteran again discussed his in-service traumas and how his current mental health symptoms relate to those traumas; however, the examiner found no mental disorder diagnosis due to the examiner’s impression of the Veteran’s noncredible self-report and effort. The examiner also noted that antisocial and borderline personality traits were “suggested” by the Veteran’s legal and relationship history. A December 29, 2013, treatment record from Adanta Group documented diagnoses of PTSD and cannabis use disorder in remission; the record also described PTSD symptoms related to the Veteran’s in-service traumas. An April 2015 VA headaches examination diagnosed tension headaches that the examiner opined were likely related to chronic stress and anxiety. During the April 2015 VA psychiatric examination, the Veteran again discussed his in-service traumas and how his current mental health symptoms relate to those traumas. The examiner diagnosed unspecified anxiety disorder and cannabis use disorder in sustained remission. The examiner noted that there was no significant psychiatric history before service and that the anxiety issues began following his military experiences. In a January 2016 private evaluation, Dr. JRA discussed how: (a) the VA opinions that found the Veteran to be malingering were inadequate because of insufficient validity testing; (b) many times, PTSD symptoms have delayed onset, sometimes several years after the traumatic events; (c) the Veteran’s history of abuse in childhood and current symptoms is highly suggestive of a borderline personality disorder with antisocial features, which is not relevant as to whether he meets the PTSD criteria; (d) the Veteran’s current symptoms are intertwined with his in-service traumas; (e) the Veteran has had chronic PTSD symptoms since about 2008 that were of delayed onset after his in-service traumas; (f) there is no reason to suspect invalid responses; (g) the Veteran meets and has met the PTSD criteria; (h) the PTSD with secondary Major Depressive Disorder and Panic Disorder with Agoraphobia was directly related to his in-service traumas; and (i) the Borderline Personality Disorder was exacerbated by his in-service traumas. During the April 2016 VA psychiatric examination, the Veteran again discussed his in-service traumas and how his current mental health symptoms relate to those traumas; however, the examiner was unable to render a diagnosis (apart from cannabis use disorder in sustained remission) due to the examiner’s impression that the examination results were invalid. During the March 2021 Board hearing, the Veteran again discussed his in-service traumas and how his current mental health symptoms relate to those traumas. Based on this evidence, the Board finds that the Veteran’s acquired psychiatric disorders were at least as likely as not caused or aggravated beyond natural progression by his in-service traumas. The Veteran is competent to report regarding the in-service traumas and how his mental health symptoms are related to those traumas; further, because those competent reports have remained longitudinally consistent throughout the record, the Board finds them to be highly probative. Jandreau, supra; Layno, supra. Despite the VA opinions that questioned the Veteran’s symptom reporting, there is more medical evidence to the contrary, with the STR’s, Adanta Group records, and private evaluation by Dr. JRA validating the Veteran’s mental health diagnoses and symptoms, which were described as related to his in-service traumas. As such, because the overwhelming majority of the evidence indicates that the Veteran’s mental health disabilities are etiologically related to his in-service traumas, service connection is warranted and the Board grants the claim. Lastly, as discussed above, during the March 2021 Board hearing, the Veteran contended that his memory loss claim should be combined with his acquired psychiatric disorder claim; as such, those appeal issues have been consolidated, as reflected herein, such that memory loss is considered as a symptom of the mental health conditions, rather than a standalone disability. Because this represents a full grant of all benefits sought on appeal, the Board considers this appeal to be resolved in full. 5. Entitlement to service connection for a headache disability The Veteran generally contends that his headache disability is secondary to his mental health conditions. See March 2021 Board hearing transcript. An April 2015 VA headaches examination diagnosed tension headaches that the examiner opined were likely related to chronic stress and anxiety; the Board finds this opinion to be probative because it was based on a thorough review of the nature, duration, frequency, and severity of the headaches during examination. As such, because the evidence indicates that the Veteran’s headache disability is etiologically related to his mental health conditions (service connected herein), secondary service connection is warranted and the Board grants the claim. Because this represents a full grant of all benefits sought on appeal, the Board considers this appeal to be resolved in full. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.